Legal Library

This article provides a brief overview of the
recent developments around this hot topic, including: the status of the
legalization of cannabis, associated regulations, connection to Bill C-46,1 and
some of the key issues emerging from legalization.

1. Recreational use of cannabis will be legal
in Canada on October 17, 2018.

The Liberal government looks set to achieve
their stated goal of legalizing cannabis by 2018, although it will be slightly
later than initially forecast. Bill C-45, the Cannabis Act ("the
Act"), to legalize and regulate the recreational consumption of cannabis
received Royal Assent on June 21, 2018. On June 19, 2018, senators passed Bill
C-45 by a 52-29 vote, with two abstentions. The Act is scheduled to come into force,
making recreational cannabis use officially legal on October 17, 2018. The
delay to the fall is to allow the provinces time to prepare for legalization,
including procurement of cannabis stock to sell from storefronts.

The societal context for Bill C-45 has been
characterized as follows by Parliament:2

“This enactment enacts the Cannabis Act to
provide legal access to cannabis and to control and regulate its production,
distribution and sale.

The objectives of the Act are to prevent young
persons from accessing cannabis, to protect public health and public safety by
establishing strict product safety and product quality requirements and to
deter criminal activity by imposing serious criminal penalties for those
operating outside the legal framework. The Act is also intended to reduce the
burden on the criminal justice system in relation to cannabis.”

2. Cannabis is to be regulated through a model
of co-operative federalism.

In November 2017, Health Canada published a
consultation paper, “Proposed Approach to the Regulation of Cannabis”, which
aimed to elicit feedback from stakeholders on the proposed regulations
ancillary to the Cannabis Act. The consultation period closed on January 20,
2018. A summary of the feedback received during the public consultation was subsequently
published by Health Canada.

The regulation of cannabis is to occur through
a division of responsibility between the federal and provincial/territorial
levels. The Standing Senate Committee on Legal and Constitutional Affairs said
in its May 1, 2018 report, following its consideration of Bill C-45, that
“while the Cannabis Act would provide a national framework addressing the
criminal and health-related aspects of these matters, the provinces,
territories, municipalities and Indigenous communities are expected to further
regulate the possession, use, sale, and distribution of cannabis.”3

The regulations address the following themes:4

Licences,
Permits, and Authorizations;

Security
Clearances;

Cannabis
Tracking System;

Cannabis
Products;

Packaging
and Labelling;

Cannabis
for Medical Purposes;

Health
Products and Cosmetics Containing Cannabis; and

Miscellaneous
Issues.

The Government announced that its cannabis
regulations are to be published on July 11 and to come into force in October
along with Bill C-45. The regulations are summarized in some detail here.

3. Provinces are moving in the same direction,
but not taking a uniform approach.

In anticipation of the Cannabis Act coming into
force, provinces and territories have been creating their own cannabis
frameworks.

Legal age: Most provinces and territories have
set the minimum age for possession of cannabis at 19. The governments of Québec
and Alberta plan to set legal age restrictions for cannabis at 18.

Retail sales: British Columbia and Nunavut will
allow sales from both private and public cannabis retailers. Alberta,
Saskatchewan, Manitoba, and Newfoundland and Labrador will permit sales from
private cannabis retailers. Ontario, Québec, Prince Edward Island, Nova Scotia,
Northwest Territories, and New Brunswick will only allow sales from
provincially operated cannabis retailers. Only Saskatchewan and Manitoba have
expressed an interest in implementing a private retailer system for online
sales. In Ontario, cannabis will be available through Ontario Cannabis Stores,
which are operated by the LCBO.

Home-growing: Under the Cannabis Act,an
individual may grow up to four plants in a single dwelling.

However, Manitoba and Québec have decided to
prohibit home cultivation of cannabis. Other provinces and territories have
implemented their own restrictions on the quantity and location of homegrown
cannabis.

Retail location: Some provinces and territories
have imposed, or plan to impose, restrictions on where retail cannabis stores
may be located. In New Brunswick, cannabis stores must be at least 300 metres
away from a school. Other provinces such as Alberta and British Columbia have
implemented restrictions providing that cannabis stores may only sell cannabis
and cannabis accessories.

Number of retail locations: The number of
retail cannabis stores will also be provincially regulated. The numbers vary by
province, with Yukon having the fewest at one, and Alberta having the most, at
250.

Recreational consumption: Consuming
recreational cannabis in public will be prohibited in Saskatchewan, Ontario,
and Newfoundland and Labrador. Other provinces, such as British Columbia and
Alberta, have prohibited cannabis consumption wherever smoking tobacco is
prohibited.

4. There is ongoing debate about how to address
drug-impaired driving. This is covered in Bill C-46, a separate piece of
legislation, which also received Royal Assent on June 21, 2018.

Legislative changes have been enacted to
address drug-impaired driving in light of the legalization of cannabis. Bill
C-46, which also received Royal Assent on June 21, 2018, amends the Criminal
Code to strengthen the legislative provisions relating to driving while
impaired by drugs, including cannabis.

One of the issues that has been debated during
consideration of Bill C-46 in the Senate is how to reliably detect current
impairment at the roadside, including oral fluid testing and/or blood testing.
The mechanism of testing (equipment) is not settled. For now, Bill C-46 appears
to permit roadside alcohol and drug screening through collection of a
"bodily substance", which could include blood. Bill C-46 has set
limits for offences linked to cannabis consumption in the following terms: 5

Two
nanograms (ng) but less than five ng of tetrahydrocannabinol (THC) per
millilitre (mL) of blood: an offence punishable on summary conviction with a
maximum fine of $1,000;

Five
ng or more of THC per mL of blood: a hybrid offence liable to the punishments
currently set out in section 255(1) of the Code; and

More
than 2.5 ng of THC per mL of blood combined with a blood alcohol concentration
(BAC) of 50 milligrams (mg) of alcohol per 100 mL of blood (0.05): a hybrid
offence liable to the punishments currently set out in section 255(1) of the
Code.

5. The legalization of cannabis will raise some
interesting issues for the workplace.

There has been interesting analysis on the
anticipated impact the legalization of cannabis will have on the workplace. In
particular, how the respective rights of employers (to ensure a safe working
environment) and of employees (to privacy, and, in some cases, to use cannabis
for medical purposes) should be balanced. In Aitchison v. L & L Painting
and Decorating Ltd., the Human Rights Tribunal of Ontario denied a
discrimination claim in a case involving a high-rise painter found smoking
cannabis at work, which he attributed to a medical need. There are other recent
decisions reaching similar conclusions on the appropriate balance to be struck
between these competing interests, including the recent Court of Appeal of Nova
Scotia decision overturning a ruling that denying coverage for medical cannabis
was discriminatory.6

As the law stands, termination of an employee
may be defensible in circumstances where they attend work under the influence
of drugs or alcohol, bring drugs or alcohol to the workplace, or consume drugs
or alcohol in the workplace. Granted, that determination will need to be
fact-specific, and consideration will need to be given to any human rights
issues at play, including alleged disability connected to drug use. There is,
however, no absolute right to use medical cannabis at work, and the
legalization of recreational cannabis use is unrelated to, and not expected to
impact, that position.

On a separate note, there were calls during
Senate debates for Bill C-46 to include “a regulatory alcohol and drug testing
framework to monitor and address employee fitness for duty in safety-sensitive
industries, particularly in the transportation industry".7

6. There will be (at least initially) little
impact on access to cannabis for medical purposes.

The impact on cannabis for medical purposes is
expected to be negligible.8With the exception of approval for a wider class of
health professionals to prescribe cannabis, it is expected that access to
cannabis for medical purposes will remain unaffected by the Cannabis Act. As
things stand, those accessing cannabis for medical purposes need a medical
document to do so, which they can obtain from physicians and nurse
practitioners (the latter only in provinces and territories where supporting
access to cannabis for medical purposes is included under their scope of
practice or in legislation).

One area that may see some change is the
personal injury field where it is anticipated that there will be an increase in
the number of plaintiffs seeking funding for medical cannabis as an alternative
to traditional forms of pain relief. The Ontario Workplace Safety and Insurance
Appeals Tribunal has outlined principles to be considered in extending funding
for medical cannabis in Ontario.

7. A cannabis tracking system will be
implemented.

As mentioned in point two above, the cannabis
tracking system will operate like an online portal to track cannabis through
the supply chain from seedling, to sale, to the ultimate consumer. This is
intended to operate as a means to prevent the diversion of legitimate cannabis
into the black market, or from the black market into legitimate distribution.
The tracking system will also ensure quality control, facilitate recalls, and
provide other related services for consumers. How this will work exactly
remains to be seen.

8. Cannabis packaging, labelling and
advertising will be prescribed by the government.

Again, see point two above. Packaging and
labelling will be strictly prescribed for consistency of information and to
address the government’s stated goal of protecting the public. Proposed images
showing how the packaging may look were released by Health Canada on March 19,
2018. Those images can be accessed through the second link in section two of
this article.

What about advertising and media? The Cannabis
Act restricts marketing similarly to tobacco. It bans promotion that appeals to
youth, contains false or misleading statements, or depicts people, celebrities,
characters, or animals. How this will be enforced, especially with regards to
the internet, remains to be seen.

9. Some groups believe Bill C-45 does not do
enough.

Concerns have been expressed about the
potentially significant collateral impact that the maximum penalty provisions
will have on non-citizens as a consequence of the deportation provisions of the
Immigration and Refugee Protection Act.

There has also been a call for the federal
government to grant pardons to people convicted of possessing 30 grams or less
of cannabis.9 One perspective is that the legacy of systemic failures leading
to the overrepresentation of visible minorities in arrests and convictions
connected with cannabis will remain after the legalization, particularly if
there are no pardons for minor cannabis infractions that predate the passing of Bill C-45.10

There is to be a mandatory review of the
Cannabis Act after three years. The Criminal Justice Section of the Canadian
Bar Association made the proposal through their April 17, 2018 letter to the
Chair of the Senate Committee on Legal and Constitutional Affairs,11 that the
review should be conducted in conjunction with a review of Bill C-46.

10. Other issues will need to be ironed out.

Given the speed at which Bill C-45 was passed
through the legislature, we can expect some teething problems. As is discussed
in the January 2018 CBA submission regarding the Consultation on Federal
Cannabis Regulation, a regime for the Minister of Health to make administrative
decisions for issuing and placing conditions on licences, permits and
authorizations is being contemplated. The minister is to issue licences for
standard and micro-cultivation, standard and micro-processing, industrial hemp,
nurseries, sale for medical and non-medical purposes. The minister is to give
notice in writing with reasons of a refusal to issue, renew or amend a licence
or permit. There are no provisions for recourse. Among other things, there
needs to be a mechanism for decisions to be reconsidered, appealed or reviewed,
so that requirements of procedural fairness are met.12

Finally, there are those who believe that the
Cannabis Act will face many years of constitutional challenges, including from
parties seeking to resist or enforce the stance taken by Manitoba and Québec to
ban home cultivation. There’s also the perspective that Indigenous communities
were not adequately consulted about legalization, residual concerns over the
impact on their communities and a potential lack of clarity over taxation on
reserves. Time will tell how it all plays out.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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